dismissed L-1A Case: Computer And Automotive Sales

U.S. Department of Homeland Security 
20 Mass. Ave. N.W. Km. A3042 
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kitvent clearly 
lamdon of pem ptvW 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: SRC 03 175 52902 Office: TEXAS SERVICE CENTER Date: SP 0 2 2005 
Petition: Petition for a Nonirnrnigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration 
and Nationality Act, 8.U.S.C. 8 1 IOl(a)(I 5)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
SRC 03 175 52902 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-IA 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 3 1101(a)(15)(L). The petitioner is a corporation organized in the State of Texas that 
is engaged in the assembly, wholesale, and retail sale of computer systems and will soon be engaging in the 
retail sale of automobiles. The petitioner claims that it is the subsidiary of located in Karachi, 
Pakistan. The beneficiary was initially granted a one-year period of stay to open a new office in the United 
States, and the petitioner now seeks to extend the beneficiary's stay for three more years. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner filed an appeal in response to the denial. Ori appeal, counsel for the petitioner contends that the 
director erred in his findings, and claims that the evidence contained in the record clearly established that the 
beneficiary qualified as an executive. In support of these contentions, counsel submits a detailed brief and 
additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
t The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (1)(1 )(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the\alienls prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies him/her to perform the intended 
SRC 03 175 52902 
Page 3 
servlces in the United States; however, the work In the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. fj 214.2(1)(14)(11) also provldes that a vlsa petition, which involved the openlng of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and forelgn entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been dolng business as defined in 
paragraph (l)(l)(~i)(H) of this section for the previous year; 
(C) A statement of the dutles performed by the beneficlary for the prevlous year and the 
dut~es the beneficlary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evldence of wages pald to 
employees when the beneficlary w~ll be employed in a managerlal or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The pn.mary issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Sectlon 10 1 (a)(44)(A) of the Act, 8 U.S.C. fj 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment wlthln an organlzat~on In whlch the employee primarily: 
(1) manages the organlzation, or a department, subd~vls~on, function, or component of 
the organlzation; 
(11) supervises and con&ls the work of other supervisory, professional, or managerlal 
employees, or manages an essent~al function w~thln the organlzat~on, or a department 
or subdlvislon of the organlzatlon; 
(111) ~f another employee or other employees are dlrectly supcrvlsed, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave author~zatlon), or ~f no other employee is directly supcrvtsed, 
functions at a senlor level wlthin the organlzat~onal h~erarchy or with respect to the 
funct~on managed; and 
(IV) exercises discretion over the day to day operat~ons of the activlty or function for which the 
employee has authonty. A first Itne supervisor IS not considered to be actlng In a managerial 
SRC 03 175 52902 
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capacity merely by virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Sectton 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines the term "executive capacity" as an 
asstgnment wtthln an organization in whtch the employee prtmartly: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(11) establishes the goals and pollcles of the organlzatlon, component, or function; 
(111) exercises w~de latitude In d~scret~onary dectslon mak~ng; and 
(IV) receives only general supervlslon or dlrectton from htgher level executives, the board 
of d~rectors, or stockholders of the organization. 
In the lnit~al petitton, counsel submltted a letter from the petitloner dated June 5, 2003. In thls letter, the 
pet~tioner clalmed that ~t currently employed three employees and retamed one lndependent contractor. Wtth 
regard to the benefictary's role In the petltloner's organtzatton, the petttloner stated: 
As Prestdent of [the petittoner], [the beneficiary] has done and wtll contlnue to do the 
following duties: 
--Manage and oversee all aspects of the buslness; 
--Htre, tram, and fire employees; 
--Manage all business expansion, ~ncluding what ltnes of buslness to enter and where 
the stores or lots would be located; 
--Make declstons concerning the purchases of major Items; 
--Do the bustness' financtal planning; 
--Dectde what kind of marketing strategy to take with the publtc or wlth dealers. 
l'he petlttoner also submltted copies of Forms W-4, Employer's W~thholdmg Allowance Certificate, for the 
benefic~ary and two other employees, slgned on Aprtl 1, 2003, Aprll 15, 2003, and June 30, 2003.' In 
addition, the petitloner's Form 941 for the quarters endtng December 3 1, 2002 and March 3 1, 2003 were 
submttted wlthout attachments. Ftnally, the petlttoner submitted a copy of ~ts independent Contractor 
Agreement, dated January 1,2003 as evtdence that it employed one contract employee. 
I - Ihe last W-4 form, whlch was prepared by the benefic~ary, was stgned and dated on June 30, 2003 and 
subm~tted with the petltion. The AAO notes that the petltton was filed on June 9,2003, twenty-one days prlor 
to the date on the W-4. Doubt cast on any aspect of the petlt~oner's proof may, of course, lead to a 
reevaluatton of the rel~ablllty and sufficiency of the remalnlng ev~dence offered in support of the visa petition. 
Mutter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). If CIS falls to believe that a fact stated In the petltion 1s 
true, CIS may reject that fact. Sectlon 204(b) of the Act, 8 U.S.C. 4 1154(b); see ul~o Anetekhar v INS., 876 
F.2d 121 8, 1220 (5th Ctr.1989); Lu-Anrz Bakety Shop, Irzc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); 
Sy.rtronrcs Corp v INS. 153 F. Supp. 2d7, 15 (D.D.C. 2001). 
SRC 03 175 52902 
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The director found the Initla1 evldence submitted to be lnsuffic~ent and consequently Issued a request for 
addltlonal evldence on August 13, 2003. Although the director's request focused more spec~fically on the 
beneficlary's employment abroad, the petltloner was also requested to submlt addltlonal evldence pertalnlng 
to its contract employee, as well as the current busmess status of the pet~tioner. 
In a response dated October 31, 2003, the petitioner submitted a sworn affidavit from the beneficiary, dated 
October 27. 2003, which addressed the director's questions, . The beneficiary provided an overview of the 
employees working for both of the petitioner's business and explained the nature of his employment abroad. 
On March 19, 2004, the director denied the petition. The director found that the evidence in.the record failed 
to establish that the beneficiary would be functioning in a primarily managerial or executive capacity. 
Specifically, the director cone1,uded that the beneficiary would be performing' the day-to-day tasks of the 
organization. The director further concluded that the beneficiary would not be supervising a subordinate staff 
of managers, supervisors, or professionals. 
On appeal, counsel,restates the beneficiary's duties and alleges a number of factors which he feels renders the 
director's decision erroneous. Counsel criticizes the director's focus on the, managerial aspect of the 
beneficiary's position and points out that the director did not appear to consider his eligibility under executive 
capacity. Furthermore, counsel asserts that the director failed to consider the beneficiary's qualifications as a 
function manager and that she drew biased inferences about the beneficiary's qualifications from a misplaced 
reliance on staffing levels. ~inall~,'counsel asserts that the denial was erroneous in light of the overall stage. 
of development of the petitioner. 
Upon review, counsel's assertions arc not persuasive. Whether the beneficiary is a 'manager or executive 
employee turns on whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. In this case, the petitioner asserts 
that the beneficiary is an executive by virtue of his position title, experience, and associated duties. However, 
the description of duties provided by counsel is vague and fails to specify the exact nature of the claimed 
executive duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature; othe~ise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd: v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1,989), aff'd, 905 F.2d 41 '(2d. 
Cir. 1990). 
The descnpt~on of the beneficlary's dutles, provlded In the lnltlal letter of support, IS vague and seems to 
merely paraphrase the regulatory defin~tlons. Spec~fically, the identlficatlon of dutles such as "hlre, tram, and 
tire employees" and "manage and oversee all aspects of the business" do llttle to clanfy what the benefic~ary 
does on an average workday. 
The actual duties themselves reveal, the true nature of the employment. Id. In reviewing the beneficiary's 
stated.duties, it appears that the majority of his time is devoted to the company's marketing and acquisitions. 
For example, his stated duties include "decid[ing] what kind of marketing strategy to take with the public or 
with dealers" and "mak[ing], decisions concerning purchases of major items." An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
SRC 03 175 52902 
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managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988). 
Counsel contends that the director erred by narrowly reviewing the beneficiary's qualifications as a manager 
instead of as an executive and asserts that the beneficiary is the sole executive of the petitioner and, as 
president, operates in an executive capacity. However, counsel simultaneously on appeal alleges for the first 
time that the beneficiary is a function manager and also claims that the beneficiary does in fact supervise 
professional employees so that he is a qualified manager. These assertions are not persuasive. Counsel does 
not clarify whether the beneficiary is claiming to be primarily engaged in managerial duties under section 
101(a)(44)(A) of the Act or primarily executive duties under section 101(a)(44)(~) of the Act. A petitioner 
must clearly describe the. duties to be performed by the beneficiary and indicate whether such duties are either 
in an executive or managerial capacity. (To provide a petitioner with all available options, CIS customarily 
examines the beneficiary's eligibility under both statutory definitions). In this case, however, counsel on 
appeal is essentially claiming that the beneficiajr is employed as a hybrid "executive/manager" and relies on 
partial sections of the two statutory definitions. If the petitioner chooses to'represent the beneficiary as both 
an executive and a manager, it must establish that the beneficiary meets each of the four criteria set forth. in 
the statutory definition for executive and the statutory definition for manager. 
Counsel also asserts that the director erroneously relied on the petitioner's staffing'levels ak i basis for the 
denial. Although the director based his decision partially on the size of the enterprise and the number,of staff, 
the director did not take into consideration the reasonable needs of the enterprise. As required by section 
101(a)(44)(C) of the Act, if.staffing levels are used as a factor in determining whether an individual is acting 
in a managerial, or executive capacity, CIS.must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. However, it is approprjate for CIS 
to consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
' 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. see. e.g. Sy.stronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). The size of a company may 
be especially relevant when CIS notes' discrepancies in the record and fails to believe that the facts asserted 
are true. Id. 
The beneficiary stated the following about the U.S. petitioner: 
[The petitioner] conslsts of two businesses: first, a computer and electron~c parts busmess 
wh~ch has been operatlng slnce approximately September 2002; and second, a used car 
dealership whlch has been operatlng s~nce we obtalned our Automob~le Dealer's Ltcense on 
June 18,2003. 
The computer and electronic parts business is a wholesale business which operates under the 
name [of the petltloncr]. Besldes myself, the wholesale trade currently employs one 
independent contractor 
- 
was a dr~ect W-2 
employee of our business in March and Aprll 2003. e ecame an lnde~endent contractor 
with us in May 2003. In May 2003 he contracted with us for 48 hours; in June 2003, 18% 
hours; in August 2003, 27 hours; in September 2003, 37 hours. Copies of his checks are 
SRC 03 175 52902 
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~ncluded. ~ecause us in March 2003 and not 2002. we do not 
have any W-2 or 1099s for him. erforms techn~cal work, consultation, repalr, 
and ~nstallatlon for our business. 
The petitioner went on to state that 
Communlcatlon from Osmanla Unlverslty ii~~derabad, India. 
With regard to the used car dealership, the beneficiary stated:. 
[The auto dealership] operated under the dm/- S~nce opening in June 2003, we 
have purchased about 26 vehicles. We have sold 6 cars, with another 6 cars under contract, 
where the purchasers are making payments before being allowed [to] drive them off the lot. 
Besides myself, the auto dealership has one W-2 employee, 
He 1s a highly trained automobile technician. 
The beneficlary finlshcd his d~scussion of the busmess and staffing by stat~ng that "we expect that Najma 
Begum wlll shortly return to perform services with our company as a Bookkeeper and Office Clerk" and 
stated that she would be employed 24 hours per week. 
At the t~me of filmg, therefore, the petltloner was a 1-year-old computer retaller and wholesaler that cla~med 
to have a gross annual income of $200,000. The petitloner claims ~t 1s now engaged In the sale of used cars in 
add~tlon to ~ts computer busmess. The firm employed the benefic~ary as president, plus an independent 
contractor who was a speclalist w~th automobiles, In addltlon to a computer technlcian. The petltloner also 
clalmcd that a part-tlme clerlcal worker would llkely be returning, but ~t was unclear whether she was 
currently workmg for the petltloner. The petlt~oner dld not submlt sufficient evldence that ~t employed any 
subordinate staff members who would perform the actual day-to-day, non-managerla1 operations of the 
company. 
Although the beneficiary's affidavit attests to the fact that it employs one employee in 'the computer busincss 
and one employee in the automobile business, it is unclear who performs the day-to-day operations of thc 
company. Who keeps the books for each company? Who handles marketing, inventory, accounting, and 
sales? The petitioner claims that the computer technician is an independent contractor whose hours vary. 
Although the director requested proof of his relationship with the petitioner, the petitioner advised it did not 
have a 1099 on record since he began'working with the petitioner in this calendar year. Without documentary 
evidence to support its statements, the petitioner does, not meet its burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998). Although the petitioner submitted copies of checks 
which allegedly represented the petitioner's compensation of this contractor, these checks are not canceled 
and it is unclear whether they represent true payments rendered. If CIS fails to believe that a fact stated in the 
petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 5 1154(b); see also Anetekhai v. 
I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakely Shop, Inc. v. Nelson, 705 F. Supp: 7, 10 
. (DD.c.1988); Systronics Corp. v. INS, 153 F: Supp..2d 7, 15 (D.D.C. 2001). , 
In addlt~on, the beneficiary In h~s affidavit clalms that ~ts other employee is a hlghly tralned automobile 
technlclan. Wh~le commendable, it st111 does not clarify how an auto technlcian w~ll reheve the beneficlary 
SRC 03 175 52902 
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from performing the essent~al and non-quahfymg tasks requ~red to contlnue the operation of the two 
buslnesses. It IS unllkely that an untramed auto techn~clan w~ll s~multaneously provlde salesmanship and 
handle the books. Flnally, although a Form W-4 was presented for the office technlc~an, the beneficiary's 
affidavit clalms that the petitlonlng enterprise expects her to return shortly." Consequently, ~t appears that the 
part-tlme clencal relief the pet~tloner relles upon is not even employed by the petltloner currently. Even ~f she 
was, she only works twenty four hours per week. It IS unclear how one person, worklng 24 hours per week, 
could perform all office support and customer servlce functions requlred by two separate and dlstlnct 
buslnesses. 
Based on the petitioner's representations, it does not appear that the reasonable needs of the petitioning 
company might plausibly be met by the services of the beneficiary as president, one auto technician, and one 
independent contractor working as a computer technician. Regardless, the reasonable.needs of the petitioner 
serve only as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or 
executive duties. The-petitioner must still establish that the beneficiary is to be employed in the United.States 
in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) of the Act. As 
discussed above, the petitioner has not established this essential element of eligibility. 
The AAO notes that counsel relies heavily on Mars 'Jewelers, Inc. v. Immigration and Naturalizatiotr Service, 
702 F. Supp. 1570 (N.D. Ga. 1988), in support of the premise that the director erred in examining the size of 
the petitioning entity in reaching the decision. However, counsel fails to recognize or discuss the subsequent 
holding in Systronics, which, as discussed above, permits CIS to'examine an entity's size in relation to the 
reasonable needs of the entity. Consequently, counsel's reliance on Mars Jewelers is misplaced and will not 
be considered for purposes of this analysis. 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision.' While 8 C.F.R. $ 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
CIS.must take into account the reasonable needs of the organization, in light of the overall purpose and stage 
of deveiopmcnt of the organization. In the piesent matter, however, the regulations provide strict evidentiary 
requirements for the extension of a "new office" petition and require CIS to examine the organizational 
structure and staffing levels of the petitioner. See 8 C.F.R. fj 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 8 
214.2(1)(3)(v)(C) allows'the "new office" operation one year within the date of approval of the petition to 
support an executive or managerial position. There is no provision in CIS regulations that allows for an 
extension of this one-year period. If the business does not have sufficient staffing'after one year to relieve the 
beneficiary from primarily performing operational and administrative tasks, the petitioner is ineligible by 
regulation for an extension. Although counsel on appeal alleges that.numerous new employees have been 
retained, this assertion is not persuasive, since the petitioner must establish eligibility at the time of filing. In 
the instant matter, the petitioner has' not reached the point that it can employ the beneficiary in a 
~redorninantl~ managerial or executive position. . . 
SRC 03 175 52902 
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Flnally, the assertlons of counsel on appeal are not supported by independent evldence. Conclusory 
assertions regarding the beneficiary's employment 'capacity are not sufficient. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertlons of counsel do not constitute evldence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
The pet~t~oner must establlsh ellglblllty at the tlme of fillng the nonlmmigrant vlsa petition. A vlsa petlt~on 
may not be approved at a future date after the pet~tloner or beneficiary becomes ellgible under a new set of 
facts. Matter of M~chehn Trre Corp., 17 I&N Dec 248 (Reg. Comm. 1978). 
For the reasons set forth above, the petitioner has failed to establlsh that the beneficiary's dutles would be 
primarily managerial or executive in nature. For this reason, the petltlon may not be approved. 
In vlsa petlt~on proceedings, the burden of provlng ellgbility for the benefit sought remains entirely w~th the 
petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has not been met. Accordingly, the 
director's decislon will be affirmed and the petltlon will be denled. 
ORDER: The appeal is dismissed.